Mahamud Mohammad Sumon v. Torture Claims Appeal Board

HCAL 1392/2019

[2023] HKCFI 1676

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1392 OF 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 33-year-old national of Bangladesh who entered Hong Kong illegally on 6 January 2015 and surrendered to the Immigration Department one month later on 12 February 2015 when he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by his cousin over their land dispute in his home village and/or by some local supporters of the political party Awami League (“AL”) as he supported their rival Bangladesh Nationalist Party (“BNP”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Hamgaon, District Shariatpur, Bangladesh. After leaving school he ran his own computer/mobile phone shop in his home district, and supported BNP regularly attended their local meetings and activities but without holding any official post in the party.

3.His cousin Sahadat who lived next door to the Applicant’s family home and supported AL frequently raised various issues with the Applicant including some land dispute over the boundary which divided their houses, and one day in October 2014 Sahadat forcefully possessed part of the land of the Applicant’s family by erecting a fence on the land, and when the Applicant tried to stop him, Sahadat and his men beat him with bamboo sticks violently until being intervened by the Applicant’s mother.

4.Several days later some AL supporters confronted the Applicant to demand that he should stop supporting BNP, and then forcefully removed his clothes in the public to humiliate him.

5.On another occasion in December 2014 while on his way home the Applicant was forcefully taken by some AL people including his cousin Sahadat to a jungle where they tied him up and beat him repeatedly that he lost consciousness. Eventually with the help of one of the AL supporters the Applicant managed to make his escape to hide in his uncle’s home in Comilla.

6.However, when he later heard that those AL supporters had been able to locate him and were coming to kill him, the Applicant fled to Narshindi, and on 28 December 2014 departed Bangladesh for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 21 June 2018 and attended screening interview before the Immigration Department with legal representation.

7.By a Notice of Decision dated 26 July 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his cousin Sahadat and/or those local AL supporters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for either of them to seriously harm or kill him, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 157 million people spread across a vast territory of more than 130,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Dhaka or Chittagong where it would be difficult if not impossible for anyone to locate him.

9.On 6 August 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 25 January 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 14 May 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found numerous inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted that those AL supporters would have any reason to specifically target him for harm given the fact that he was just an ordinary BNP supporter without holding any official post in the party, while his problem with his cousin was just a minor private dispute within their families that it doubted the credibility of his claim of fear of harm from them that caused him to leave his home country to come to Hong Kong, and concluded that his claim for non-refoulement protection failed on all applicable grounds.

11.On 22 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just repeated his claim as before but without putting forward any proper ground to challenge the decision, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

12.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16.Furthermore, the Applicant has recently filed an affirmation requesting to withdraw his application as all his problems are now “finished” that he wants to return to his home country.

17.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no problem returning to his home country, I accordingly dismiss his leave application.

Dated the 28^th day of June 2023

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1